2. License Grant & Restrictions. Subject to Customer’s material compliance with this Agreement and payment of all fees and charges related to its use of the ZeroBounce Hosted Service, Provider hereby grants Customer a revocable, non-exclusive, and non-transferable, worldwide right to use the ZeroBounce Hosted Service, solely for its own internal business purposes and use.
Service. Customer’s ability to use these “Toolkit” services will be limited based on Customer’s subscription and tier level. Customer agrees not to: (i) license, sublicense, sell, resell, transfer, assign, distribute, provide access to, or otherwise make the ZeroBounce Hosted Service available to any third party; (ii) modify or make derivative works based upon the ZeroBounce Hosted Service; or (iii) decompile, disassemble, or reverse engineer the ZeroBounce Hosted Service, or permit or assist any third party to do so. Customer will not: (i) knowingly use the ZeroBounce Hosted Service or Provider Technology to send unsolicited email, including, without limitation, promotions, or advertisements for products or services; (ii) knowingly send or store infringing, obscene, libelous or otherwise unlawful or tortious material to the ZeroBounce Hosted Service; (iii) knowingly upload, or otherwise send or store material containing viruses, worms, Trojan horses or other harmful computer code, files, or programs to or from the ZeroBounce Hosted Service; (iv) interfere with or disrupt the integrity or performance of the ZeroBounce Hosted Service; (v) attempt to gain unauthorized access to the ZeroBounce Hosted Service or its systems or networks; or (vi) use the ZeroBounce Hosted Service in violation of applicable law.
3. Customer Responsibilities. Customer is responsible for all activity occurring under Customer’s account, including its right to use the Customer Data and submit the same through the ZeroBounce Hosted Service, and will abide by all applicable laws, treaties and regulations in connection with its use of the ZeroBounce Hosted Service. Customer accepts full responsibility for its use of the ZeroBounce Hosted Service and any results obtained from such use, including but not limited to any actions taken with its Customer Data after use of the ZeroBounce Hosted Service.
5. Use of Identifying Information. Customer consents to being identified by Provider as a customer on the Site and on any of Provider’s promotional material. Customer further consents to Provider’s use of its logo for such limited purposes.
6. Traffic Data Collected & Use of Cookie Consent ZeroBounce may store information that your computer provides to us in connection with your use of the Site and/or Services, such as: 1) IP address; 2) domain servers; 3) type of computer or device accessing the Site; and 4) types of web browsers used to access the Site (collectively, “Traffic Data”). Traffic Data is anonymous information that does not personally identify you but is helpful for marketing purposes or for improving your experience on the Site. ZeroBounce may also store usage data such as the date and time the Site and Services are accessed, and what information and files have been downloaded. When you visit the Site or otherwise interact with the Services, ZeroBounce may send one or more “cookies” to your computer. Cookies are alphanumeric identifiers stored on your computer through your web browser and are used by most websites to personalize your web experience. Some cookies may facilitate Site features for enhanced performance and functionality such as remembering preferences, analyzing usage for Site optimization, and providing custom content. ZeroBounce may link the information it stores in cookies to any personal information you submit through the Site or Services.
7. Intellectual Property Ownership. Provider owns all right, title and interest, including all related Intellectual Property Rights, in and to the Provider Technology, Content, and the ZeroBounce Hosted Service. Provider expressly reserves all right, title, and interest in and to the Provider Technology, Content, and the ZeroBounce Hosted Service, including, without limitation, any derivatives, improvements, enhancements or extensions conceived, reduced to practice or otherwise developed by Provider, together with any Intellectual Property Rights, or federal or state rights, pertaining thereto. Provider also expressly reserves any and all rights not expressly and explicitly granted in this Agreement, including, but not limited to, its right to license the Provider Technology, Content, and ZeroBounce Hosted Service. This Agreement is not a sale and does not convey any rights of ownership in the ZeroBounce Hosted Service. Customer’s rights hereunder are strictly limited as set forth herein. Customer acquires no right, title, or interest therein other than the right to use the ZeroBounce Hosted Service in accordance with this Agreement.
8. Confidentiality. Customer acknowledges that the Provider Technology, Content, and the ZeroBounce Hosted Service contain valuable trade secrets and confidential information (“Confidential Information”) of Provider, including but not limited to, the architecture and functionality of such Provider Technology, Content, and the ZeroBounce Hosted Service; and the appearance, organization, design, content, and flow of the ZeroBounce Hosted Service. Customer agrees not to share, disclose or transfer, and not to permit a third party to share, disclose or transfer any of Provider’s Confidential Information. The Parties will use reasonable diligence and in no event less than the degree of care which the Parties will use in respect to their Confidential Information to prevent the unauthorized disclosure, reproduction or distribution of such Confidential Information to any other individual, corporation or entity. Such Confidential Information will exclude: (a) information that is already in the public domain; (b) information already known to the receiving Party, as of the date of the disclosure, unless the receiving Party agreed to keep such information in confidence at the time of its original receipt; (c) information hereafter obtained by the Receiving party, from a source not otherwise under an obligation of confidentiality with the disclosing Party; (d) information independently developed without any reference to Confidential Information; and (e) information that the receiving Party is obligated to produce under order of a court of competent jurisdiction, provided that the receiving Party promptly notifies the disclosing Party of such an event so that the disclosing Party may seek an appropriate protective order.
10. Charges and Payment of Fees.
11. Termination. A Party may immediately terminate this Agreement for any reason or no reason at all. Customer may terminate this Agreement at any time by discontinuing its use of the ZeroBounce Hosted Service. Any breach of Customer’s payment obligations or unauthorized use of the ZeroBounce Hosted Service will be deemed a material breach of this Agreement. Provider may terminate this Agreement, Customer’s account, or Customer’s use of the ZeroBounce Hosted Service if in Provider’s sole discretion, Customer commits a material breach of this Agreement or otherwise fails to comply with this Agreement. In the event of such termination, Customer will not be entitled to any refund whatsoever and its credits will be forfeited.
12. Representations & Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement. Customer represents and warrants that: (a) it has the right and authority to use the Customer Data and submit the same through the ZeroBounce Hosted Service; and (b) it will abide by all applicable laws, treaties and regulations in connection with its use of the ZeroBounce Hosted Service. Provider represents and warrants that: (a) it has the right and authority to make the ZeroBounce Hosted Service available to Customer as authorized expressly by this Agreement; (b) it will provide the ZeroBounce Hosted Service in a manner consistent with general industry standards; (c) it will use best efforts to detect software viruses and other undesirable components and will promptly take all reasonable steps to remove or neutralize any such components; and (d) it will use leading commercial encryption technology designed to encrypt Customer Data in its possession.
13. Mutual Indemnification. Customer will indemnify, defend and hold Provider, and each such Party’s Affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses arising out of or in connection with: (a) a claim by a third party alleging that Customer’s use of the Customer Data or ZeroBounce Hosted Service violates any applicable law, or was unauthorized or that it exceeded the scope of the individual’s authorization by using the ZeroBounce Hosted Service to validate such Customer Data, provided in any such case that Provider (i) promptly gives Customer written notice of the claim; (ii) gives Customer sole control of the defense and settlement of the claim; and (iii) provides Customer all available information and assistance. Provider will indemnify, defend and hold Customer and Customer Affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses arising out of or in connection with: (a) a claim by a third party alleging that the ZeroBounce Hosted Service directly infringes an Intellectual Property Right of a third party; provided that Customer (i) promptly give written notice of the claim to Provider; (ii) give Provider sole control of the defense and settlement of the claim; and (iii) provides Provider all available information and assistance.
14. Disclaimer. THE REPRESENTATIONS AND WARRANTIES PROVIDED IN THIS AGREEMENT ARE PROVIDER’S COMPLETE AND EXCLUSIVE REPRESENTATIONS AND WARRANTIES. PROVIDER DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND GUARANTIES OF ANY KIND. EXCEPT AS PROVIDED HEREIN, THE ZEROBOUNCE HOSTED SERVICE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES AS TO TITLE OR INFRINGEMENT OR THIRD PARTY RIGHTS, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PROVIDER DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS CUSTOMER MAY OBTAIN BY USING THE ZEROBOUNCE HOSTED SERVICE. PROVIDER DOES NOT WARRANT THAT ACCESS TO OR USE OF THE ZEROBOUNCE HOSTED SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. PROVIDER EXPRESSLY DISCLAIMS ANY INDEMNIFICATION FOR ANY CLAIMS OR ACTIONS BROUGHT AGAINST CUSTOMER BASED ON, OR AS A RESULT OF, OR IN CONNECTION WITH ANY INACURRACY, OMISSION, DEFECT OR MISTAKE IN THE ZEROBOUNCE HOSTED SERVICE, OR CUSTOMER’S USE THEREOF.
15. Limitation of Liability. EXCEPT FOR CLAIMS ARISING UNDER A PARTY’S OBLIGATIONS OF CONFIDENTIALITY OR INDEMNIFICATION UNDER THIS AGREEMENT, NEITHER PARTY’S AGGREGATE LIABILITY WILL EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO PROVIDER IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, AND NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND ARISING FROM CUSTOMER’S USE OF THE ZEROBOUNCE HOSTED SERVICE. NOTWITHSTANDING THE FOREGOING, PROVIDER’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY THEORY OF LIABILITY IS LIMITED TO THE AMOUNT OF FEES CUSTOMER HAS PAID TO USE THE ZEROBOUNCE HOSTED SERVICE IN THE PRECEDING TWELVE (12) MONTHS.
16. Notice. Provider may give notice to Customer through Customer’s e-mail address on record with Provider.
17. Modifications. Provider reserves the right to alter or revise the terms of this Agreement by giving Customer thirty (30) days’ notice of the changes to be made. Customer’s continued use of the ZeroBounce Hosted Service following after changes become effective mean that you have accepted the revised terms. If Customer does not agree to accept the changes, Customer’s sole remedy shall be to discontinue its use of the Software.
18. Force Majeure. Notwithstanding anything herein to the contrary, the Parties shall not be liable for any delays or failure in performance caused by circumstances beyond the reasonable control of the performing Party, such as wars or insurrections, acts of government, strikes, fires, floods, earthquakes, work stoppages, epidemic, pandemic, embargoes, and any other event beyond the reasonable control of the Party whose performance is affected.
19. Relationship of Parties. No joint venture, partnership, employment, or agency relationship exists between Customer and Provider as a result of this Agreement.
20. Assignment. This Agreement may not be assigned by either Party without the prior written consent of the other Party, which will not be unreasonably withheld, but may be assigned without the other Party’s consent to (i) a parent or subsidiary; (ii) an acquirer of assets or equity; or (iii) a successor by merger. Any purported assignment in violation of this section will be void.
21. Governing Law and Arbitration. This Agreement shall be construed in accordance with and governed by the laws of the state of Nevada, without regard to principles of conflict of laws. Except for injunctive relief claims related to data or privacy breaches, any claim or controversy arising out of or related to this Agreement, or the breach thereof, and/or the use of the ZeroBounce Hosted Service shall be settled by binding arbitration administered by the American Arbitration Association (AAA) in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration shall be Los Angeles, California. The United States Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to this arbitration clause. In no event shall the arbitrator(s) have any authority to award punitive or other damages not measured by the prevailing Party’s actual damages, except as may be required by statute. Irrespective of the outcome of arbitration, each Party shall bear its own costs and expenses, including its own attorneys’ fees, and an equal share of the arbitrator(s)’ fees and administrative fees of arbitration. The arbitrator(s) shall not determine or award any alternative allocation of costs and expenses, including any attorneys’ fees.
22. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision will be construed to reflect the intentions of the invalid or unenforceable provision, with all other provisions remaining in full force and effect.
23. Waiver. The failure of Provider to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by Provider in writing.
24. Amendment. No amendment or modification of any provision of this Agreement shall be effective unless in writing and executed by both Parties.
25. Entire Agreement. This Agreement comprises the entire agreement between Customer and Provider and supersedes all prior or contemporaneous negotiations, discussions or agreement, whether written or oral, between the Parties regarding the subject matter contained herein.